Man asks Court of Appeals to reinstate lawsuit against city

Lawyers for the city and a one-time home invasion suspect are heading to the N.C. Court of Appeals to get a ruling on whether the man’s lawsuit against the city can proceed.

Durham lawyer Bob Ekstrand, representing former defendant Frankie Washington, wants the appeals court to undo a ruling from visiting Superior Court Judge Osmond Smith that tossed out Washington’s case against the city and police.

Washington claims that authorities tried to frame him in 2002 for a home invasion in Trinity Park that most likely was committed by another man who’s in prison for similar sorts of crimes.

But Smith, at the city’s request, in November dismissed claims against it and the police who handled the case. He ruled that Ekstrand had failed to arrange proper service of the initial court paperwork.

Lawyers who file a lawsuit have to see to it that their targets receive notice of the start of litigation. Ekstrand tried doing so via a series of Federal Express packages, but the city questioned whether he’d followed the state’s procedural rules.

Its notice, for instance, was addressed to City Attorney Patrick Baker, when state law specifies that notice of a lawsuit targeting a city should be delivered specifically to its mayor, city manager or city clerk.

Baker was once Durham’s city manager, but last served in that role in 2008. Tom Bonfield has been city manager since August 2008.

Ekstrand in an affidavit acknowledged that he’d “mis-named” the recipient of the city’s notice because, as of the suit’s filing in September 2011, he believed Baker “to be the current city manager for the city of Durham.”

He argues the city’s stance is disingenuous because officials clearly understood they’d been sued.

Similarly, Smith held that notices to the police targeted in Washington’s lawsuit had been wrongly delivered to a Police Department clerk rather than to the actual officers named in the case.

But the judge declined requests from other lawyers that he dismiss claims against the state, former District Attorney Tracey Cline and against Baker personally. He held that they received proper notice at the start of the case, and so had to mount a defense.

Baker is appealing that ruling to the Court of Appeals. The state and Cline have not.

Washington claims he was the victim in 2002 of a police-fabricated eyewitness identification.

Two of the victims of the home invasion identified him as its perpetrator, but Washington and Ekstrand say police brought them to a “drive-by” lineup after telling them they had a suspect in custody.

A jury convicted Washington in 2007, but the Court of Appeals a year later overturned the verdict. It ruled that prosecutors had violated Washington’s speedy-trial rights, in part through their handling of DNA evidence in the case.

The 2008 appeals ruling wasn’t based at all on the identification issue. But the panel judges, in a footnote to their opinion, said they were “troubled” by “the highly suggestive show-up procedure” police used.